If you have been following U.S. foreign policy over the past decade or so, you might think that you were watching late-night reruns of Dragnet. More and more, instead of sending in the marines, the United States is calling the cops. This has led to some odd outcomes—and is raising some important new issues that are especially relevant in light of the recent terrorist strikes against the World Trade Center in New York and the Pentagon in Washington. Consider some of the twists and turns:
• In December 1988, Pan Am flight 003 exploded over Lockerbie, Scotland, killing a total of 270 people. American and British investigators concluded that the Libyan intelligence service was behind the attack. The United Nations voted to put economic sanctions on Libya. Ten years later, the Libyan government—which presumably ordered the attack—delivered two accused intelligence officials for trial. Under a strange arrangement, the two officials were tried in a Dutch court operating under Scottish rules. The court found one Libyan guilty and tossed him in the slammer for a minimum of 20 years. The other was acquitted and walked out of the courtroom.
• In June 1996 a truck bomb exploded in front of the Khobar Towers military apartment in Dhahran, Saudi Arabia, killing 19 U.S. airmen. FBI agents went to investigate. They soon suspected Iran was connected to the attack. But Saudi Arabia—the country the airmen had been sent to defend—would not cooperate fully, and the U.S. State Department refused to support an indictment against an Iranian national without incontrovertible evidence. Five years later, a federal court in New York indicted some suspects—but no Iranians.
• During the negotiation of the 1995 Dayton Accords—intended to end the civil war in Bosnia—the United States treated Serbian leader Slobodan Milosevic as a full partner in the process—even though many people believe Serbia was behind the notorious Bosnian Serb "ethnic cleansing" campaigns during the war. Four years later, the United States sought an indictment against Milosevic for ethnic cleansing in the Kosovo region of Serbia. In 2001, a new Serbian government delivered Milosevic to a UN war crimes tribunal, where an unrepentant Milosevic refused to cooperate, arguing that the court had no authority.
• Following the October 2000 bombing of the USS Cole in Aden harbor, the FBI sent a team to Yemen to investigate. The agents soon discovered that they were operating in hostile territory; Yemeni officials isolated them in a hotel for days and dragged out negotiations on how the two countries would work together on the case. Meanwhile—as in the Khobar Towers case—relations between the FBI and the State Department soured, and the investigation went nowhere.
What happens if the United Nations creates a court that we refuse to recognize? If 21 more nations ratify the treaty establishing an International Criminal Court, we’ll find out.
In other words, we are now as likely to respond to a foreign adversary as if he were Ted Kaczynski, not Joseph Stalin or Adolf Hitler. Many actions that we would previously have considered military attacks—and grounds for retaliation—are now labeled as crimes. Countries that we would have once considered "noncooperative neutrals" or "strategic adversaries" are now expected to act as partners in law enforcement. Allies of convenience that are well known to be guilty of egregious acts are now hauled into the dock as war criminals as soon as we have the chance.
Expect more controversy ahead. In 1997 the United Nations proposed a treaty creating a new International Criminal Court for war crimes, genocide, and crimes against humanity. Unlike tribunals, which are temporary, the ICC would be a permanent body with a broad, standing jurisdiction.
As of summer 2000, 139 countries had signed the ICC treaty. Bill Clinton added the United States to the list in December 2000. But 60 countries must ratify the treaty for the ICC to begin operations; so far, only 39 have done so. George W. Bush has said he will not submit the ICC treaty to the Senate for ratification. All of which raises an interesting question: What happens if the United Nations creates a court that the United States does not recognize? The question is especially interesting given that the United States itself often takes a legal approach in dealing with foreign adversaries.
National Security Takes a Legalistic Turn
Historically, international legal bodies have drawn their authority from national governments. Governments were free to submit a case to the World Court—or to reject its authority over a case, if they thought best. When the Sandinista government of Nicaragua tried to take the United States to court for supporting the contras in the 1980s, for example, the U.S. government simply ignored the action. U.S. officials explained that the court had no jurisdiction.
The United States, of course, often cooperates with foreign police forces and international law enforcement organizations. But we, like other countries, have always decided which international police organizations merit cooperation—and when. So, for example, the U.S. Department of Justice might use Interpol to exchange information with foreign police and customs services, but Interpol has zero authority to act on its own in the United States.
So how has the line between national security and law enforcement become blurred? One reason is the changing nature of national security threats. During the Cold War, our main opponent was the Soviet Union, and we had two basic choices: bilateral diplomacy or military action. The United Nations and other international organizations were mainly arenas that the two superpowers could use when they thought the organizations served their interests.
Dealing with current threats such as drug trafficking, terrorism, and organized crime often requires the active cooperation of other governments worldwide. It’s hard to apprehend suspects without working directly with the local authorities. The alternative is usually a snatch mission to grab the suspect and bring him to trial in the United States or a unilateral military strike against the suspect’s headquarters—both of which can be risky and are bound to make the foreign government even less likely to cooperate in the future.
The nature of national security threats has changed, and dealing with current threats—such as drug trafficking, terrorism, and organized crime—often requires the active cooperation of other governments.
A second reason has been that the network of treaties establishing an international legal system has grown steadily over the past century. The Geneva Conventions define war crimes. The Helsinki Accords obligate countries to respect specified human rights. As this network has grown, the United States has used it more often to justify its actions.
Bureaucratic turf is a third reason foreign policy is taking a legalistic turn. Law enforcement agencies have often had to operate beyond U.S. borders because many crimes are inherently international in nature. Smuggling, for example, crosses national borders by definition. Espionage often occurs within American borders but, also by definition, involves a foreign nation as an accomplice. And today criminals can launder money and set up bogus operations worldwide over the Internet with the click of a mouse.
J. Edgar Hoover tried—and failed—to win the FBI a bigger role in national security after World War II. Indeed, until 1947, the FBI even had stations in much of Latin America. After the Truman administration created the CIA, however, the FBI closed these stations and confined its offshore operations mainly to counterespionage. This changed in the mid-1990s. As international crime began to look like a growing threat, FBI director Louis Freeh seized the opportunity to nearly double the number of law enforcement attachés assigned to U.S. embassies.
The fourth ingredient making national security more legalistic has been politics. Presidents do make a difference. George Bush was more inclined than Ronald Reagan to use international organizations to legitimize U.S. actions, and Bill Clinton was more inclined to do so than Bush.
Consider two cases of terrorism. When Reagan administration officials concluded that Libya was behind a 1986 terrorist bombing that killed several Americans in Germany, they ordered an air strike on Tripoli in response. In contrast, when Bush administration officials concluded three years later that Libya was behind the bombing of Pan Am flight 003, they decided to find the Libyan officials who were responsible and bring them to trial. Two similar cases, two different reactions.
Similarly, Ronald Reagan did not bother to consult the United Nations before deploying U.S. forces to Grenada in 1983. In contrast, after Iraq invaded Kuwait in 1991, George Bush made it a point to win UN approval before sending troops to Saudi Arabia and, later, to authorize military action. (Bush did not, however, consult the United Nations before Operation Just Cause, the 1990 U.S. intervention in Panama.) One can speculate that Bush sought UN approval for the Gulf War because he needed much more support from our allies. He may have also been trying to keep good relations with the Soviet Union, which was on the verge of collapse. Possibly most important of all, Bush had to win over a Congress wholly controlled by the opposition party; Reagan enjoyed a Republican Senate until 1987. Even so, it seems clear that George Bush—who once served as the U.S. ambassador to the United Nations—was much more ready to recognize the organization as a player. He was also more inclined to view at least some foreign policy conflicts through legalistic lenses. For example, one objective in Just Cause was to apprehend Panamanian strongman General Manuel Noriega and bring him to the United States to stand trial for drug trafficking.
The United States has gradually begun to use a more legalistic approach to international conflict without thinking carefully about the consequences. We need a set of principles to decide when we should use the courts and when we should use the military instead.
The Clinton administration, though, was even more committed to upholding—and expanding—international legal institutions. This was a natural extension of its policy of "engagement and enlargement," expanding both the number of democracies in the world and the democratic organizations that held them together under a common international legal system. This was why, for example, Bill Clinton was apt to sign the treaty creating the ICC, and why his was the first administration to appoint a special ambassador to investigate war crimes and push for the prosecution of war criminals—even in foreign conflicts that were essentially domestic disputes.
George W. Bush’s promise that he would hold both the terrorists who struck New York and Washington and the countries that harbored them is an important turn. It moves away from a position that considers all governments to be equally legitimate and instead draws a marker: countries that seriously cooperate to control terrorism will be treated one way. Countries that support terrorism or simply fail to take effective action against terrorists within their borders will be treated another way—at least as liable parties and possibly as adversaries.
Two Approaches—Rationale, Requirements, and Risks
Besides the basic question of whether it makes sense for the United States to buy into a legal system that may often be beyond its control, there are practical issues to consider. For example, which is more likely to produce results—law enforcement or military action? That is when we really need to ask which is appropriate for a given situation.
Law enforcement and military action often resemble each other. Both often involve the use of force—guns, aircraft, people in uniform, and so on. In both, there appears to be someone who wins and someone who loses. But, in reality, the two activities are completely different. Each has different goals, requires different skills and capabilities, and has different conditions that are necessary for success.
Law enforcement consists of gathering evidence that is aimed at convincing a jury and putting someone in jail. Law enforcement officials must respect the civil rights of a suspect as they collect evidence and, later, when they arrest the suspect and put him on trial. Conviction requires that the evidence meet a legally defined level of certainty—either "preponderance of the evidence" or "evidence beyond reasonable doubt," depending on the alleged crime. And the penalties for those found guilty are written in the law.
Military action, in contrast, requires making decisions—often instant decisions—on the basis of whatever information can be collected in a limited amount of time. Military commanders do not assume their opponents are entitled to due process. Most important, the objective of a military operation is to end the conflict as quickly as possible and on favorable terms. Minimizing casualties—ours and theirs—is an important, but secondary, concern.
Let’s not fool ourselves. There is no universally accepted international system of justice that we can rely on to protect liberty, democracy, and free markets—or our national interest.
Experience shows that it is hard to design organizations or train people to perform both missions successfully. The skills, training, and culture required for each are too different. Law enforcement officials and lawyers get their reward from patience; military personnel are trained to know that hesitation can be lethal. (This is one important reason U.S. military forces are prohibited, by statute, from carrying out civilian law enforcement operations within the United States.)
Not only are the two approaches to a threat completely different, but they are largely incompatible. The decision to use one method can preclude using the other option later. For example, by cooperating with a foreign police organization or legal system, we may compromise intelligence sources and methods. In taking the time to make a case that withstands legal scrutiny by the international community, our military forces could lose the element of surprise.
Law enforcement cooperation and military cooperation also present different moral questions when we look for partners. Most Americans would agree that our military often has to cooperate closely with allies from less-than-savory regimes (e.g., the Soviet Union in World War II and several authoritarian governments during the Cold War).
On the other hand, cooperation with corrupt law enforcement organizations—or with police forces from police states—compromises our own law enforcement process. The FBI and other U.S. law enforcement agencies cannot use evidence collected by foreign counterparts who routinely use torture or brute coercion to win confessions. Such cooperation can also taint our own institutions. Once an FBI agent or U.S. cop participates in coercive, inhumane, or corrupt law enforcement, his or her credibility for working in the American legal system is compromised. In short, the conditions for accepting foreign police and legal systems as partners are tougher than those for accepting foreign military organizations.
George W. Bush has made clear that he will hold other countries responsible for terrorists operating within their territory. He has not, however, commented on the level of proof he will require before doing so. He will need to address this important issue.
The Big Question
The problem is that the United States has gradually begun to use a more legalistic approach without thinking carefully about the consequences. We need a set of principles to decide when we take one approach rather than the other.
Moreover, hiding in all these issues is the really big question: What are the goals of the United States in post—Cold War global politics? The legalistic approach assumes that we can create fair, uncorrupted international legal institutions. It also assumes that this approach—in which all countries have equal standing—can protect us from countries that have no interest in democracy and the rule of law.
For example, is it really reasonable to assume that Yemen and Saudi Arabia will cooperate in a law enforcement investigation that meets American standards? Should we even expect them to do so, given the pressure that both governments face from extremists—both internal and external—who favor theocracy and have no interest in Western legal institutions or the rule of law?
Even when we deal with other Western governments, there will be complications. Consider international crime conducted over the Internet. Do we really want to share the FBI’s methods for investigating computer crime with, say, French authorities—knowing that the French military services have a deep interest in developing their capabilities for information- and computer-network attack?
There is no reason to think we cannot develop rules of the road to guide us in using either a legalistic or a more unilateral, military approach to national security threats. The main requirement is to be clear in our own minds about whom we are dealing with and what the potential consequences are. Most of all, we should not fool ourselves, or mislead others, into thinking that there is a universally accepted international system of justice that we can rely on to protect liberty, democracy, and free markets—or our national interest.